Citation Nr: 0410772
Decision Date: 04/26/04 Archive Date: 05/06/04
DOCKET NO. 02-21 013 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to a rating in excess of 30 percent disabling for
schizophrenia, paranoid type.
2. Entitlement to a total disability rating for compensation
purposes based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESSES AT HEARING ON APPEAL
Appellant, Appellant's spouse
ATTORNEY FOR THE BOARD
K. L. Wallin, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1969 to July 1972.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from a May 2002 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Roanoke,
Virginia. The RO, which denied a claim of entitlement to a TDIU,
and an evaluation in excess of 30 percent for schizophrenia,
paranoid type.
In October 2003 the veteran provided oral testimony before the
undersigned Veterans Law Judge at a Central Office hearing, a
transcript of which has been associated with the claims file.
As to the issue of entitlement to a TDIU, this appeal is REMANDED
to the RO via the Appeals Management Center (AMC), in Washington,
DC. VA will notify the veteran if further action is required on
his part.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable resolution of
the issue on appeal has been obtained.
2. Schizophrenia, paranoid type, has been productive of not more
than
occupational impairment with reduced reliability and productivity
due to such symptoms as: panic attacks; impairment of short-term
memory; impaired judgment; impaired abstract thinking;
disturbances of motivation and mood; and difficulty in
establishing and maintaining effective work relationships.
CONCLUSION OF LAW
The schedular criteria for an increased evaluation of 50 percent
for schizophrenia, paranoid type, have been met. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
4.130, Diagnostic Code 9203 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminary Matters: Duties to Notify & to Assist
On November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114
Stat. 2096 (2000).
Among other things, this law eliminates the concept of a well-
grounded claim, and supercedes the decision of the United States
Court of Appeals for Veterans Claims (CAVC) in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet.
App. 174 (2000) (per curiam order), which had held that VA cannot
assist in the development of a claim that is not well grounded.
The VCAA provides that, upon receipt of a complete or
substantially complete application, the Secretary shall notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate the
claim. 38 U.S.C.A. § 5103 (West Supp. 2002)). The Act also
requires the Secretary to make reasonable efforts to assist the
claimant in obtaining evidence necessary to substantiate a claim
for benefits, unless no reasonable possibility exists that such
assistance would aid in substantiating the claim. 38 U.S.C.A §
5103A (West 2002).
However, nothing in section 5103A precludes VA from providing such
assistance as the Secretary considers appropriate. 38 U.S.C.A. §
5103(g) (West 2002).
Accordingly, the Secretary determined that some limited assistance
was warranted to claimants attempting to reopen claims. In
particular, the Secretary determined that VA should request any
existing records from Federal agencies or non-Federal agency
sources, if reasonably identified by the claimant, in order to
assist the claimant in reopening his or her claim. 66 Fed. Reg.
45,628.
In addition, VA has published regulations to implement many of the
provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2002)).
These new regulations, which in pertinent part are effective as of
the date of enactment of the VCAA, interpret and implement the
mandates of the statute, "and do not provide any rights other than
those provided by the VCAA." 66 Fed. Reg. 45,629.
The United States Court of Appeals for the Federal Circuit (CAFC)
recently held that only section 4 of the VCAA (which eliminated
the well-grounded claim requirement) is retroactively applicable
to decisions of the Board entered before the enactment date of the
VCAA, and that section 3(a) of the VCAA (covering duty-to-notify
and duty-to-assist provisions) is not retroactively applicable to
pre-VCAA decisions of the Board.
However, although the CAFC appears to have reasoned that the VCAA
may not retroactively apply to claims or appeals pending on the
date of its enactment, it stated that it was not deciding that
question at this time. See Bernklau v. Principi, 291 F. 3d 795
(Fed. Cir. 2002); Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir.
2002); see also Holliday v. Principi, 14 Vet. App. 280 (2001); see
also Karnas v. Derwinski, 1 Vet. App. 308 (1991).
In this regard, the Board notes that VAOPGCPREC 11-00 appears to
hold that the VCAA is retroactively applicable to claims pending
on the date of its enactment.
Further, the regulations issued to implement the VCAA are
expressly applicable to "any claim for benefits received by VA on
or after November 9, 2000, the VCAA's enactment date, as well as
to any claim filed before that date but not decided by VA as of
that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001).
Precedent opinions of the chief legal officer of the Department,
and regulations of the Department, are binding on the Board. 38
U.S.C.A. § 7104(c) (West 2002). Therefore, for purposes of the
present case, the Board will assume that the VCAA is applicable to
claims or appeals pending before the RO or the Board on the date
of its enactment.
In the case at hand, the Board is satisfied that the duty to
notify and the duty assist have been met under the new law with
respect to the issue of entitlement to an increased evaluation for
schizophrenia, paranoid types.
In September 2001, the RO notified the veteran of the enactment of
the VCAA. The RO advised him to identify any evidence not already
of record, and that it would make reasonable efforts to obtain any
such evidence pertaining to the issue currently on appeal. In
doing so, the RO satisfied the VCAA requirement that VA notify the
veteran as to which evidence was to be provided by the veteran,
and which would be provided by VA. 38 C.F.R. § 5103(a) (West
2002); see Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The duty to notify has thus been satisfied, as the veteran has
been provided with notice of what is required to substantiate his
claim. In particular, through the issuance of the May 2002 rating
decision, the October 2002 statement of the case (SOC), and the
November 2002 supplemental statement of the case (SSOC), he has
been given notice of the requirements for an increased evaluation.
In light of the above, the Board finds that the duty to notify has
been satisfied. 38 U.S.C.A. § 5103 (West 2002); 66 Fed. Reg.
45,620, 45,630 (August 29, 2001) (codified at 38 C.F.R. §
3.159(b)).
The duty to assist has been satisfied because the RO has made
reasonable efforts to obtain evidence necessary to substantiate
the veteran's claim, including any relevant records adequately
identified by him, as well as authorized by him to be obtained.
The evidence includes the veteran's service medical records, VA
outpatient treatment and hospitalization records, and private
medical records. He has not indicated that he received any other
post-service medical treatment. The veteran testified at a Central
Office hearing in support of his claim. The transcript of that
hearing is of record.
The veteran also underwent a VA compensation examination in
February 1998 and October 2001, and those examination reports are
of record. The Board finds that another VA examination is not
warranted in this case. The VA examinations of record address the
nature and extent of severity of his psychiatric disability.
Therefore, remand or deferral for the scheduling of additional VA
examination is not required. 38 U.S.C.A. § 5103A(d) (West 2002).
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the veteran in developing the
facts pertinent to his claim is required to comply with the duty
to assist under both the former law and the new VCAA. 38 U.S.C.A.
§ 5107(a) (West 2002); 38 U.S.C.A. §§ 5103 and 5103A (West 2002);
66 Fed. Reg. 45,630 (Aug. 29, 2001) (codified at 38 C.F.R. §
3.159).
In reaching this determination, the Board has considered the fact
that the law with respect to the duty to assist has been
significantly changed during the course of the appeal. As a
result, the Board has considered the applicability of Bernard v.
Brown, 4 Vet. App. 384, 393-394 (1993).
In Bernard, the CAVC has held that, before the Board addresses in
a decision a question that has not been addressed by the RO, it
must consider whether the claimant has been given adequate notice
of the need to submit evidence or argument, an opportunity to
submit such evidence or argument, and an opportunity to address
the question at a hearing, and whether the claimant has been
prejudiced by any denials of those opportunities.
In the veteran's case at hand, the Board finds that the veteran is
not prejudiced by its consideration of his claim pursuant to this
new law. As set forth above, VA has already met all obligations
to the veteran under this new law.
Moreover, the veteran has been offered the opportunity to submit
evidence and argument on the merits of the issue on appeal, and
has done so. In view of the foregoing, the Board finds that the
veteran will not be prejudiced by its actions and that a remand
for adjudication by the RO would only serve to further delay
resolution of his claim. See Bernard, supra.
Therefore, no useful purpose would be served in remanding or
deferring this matter simply for further consideration of the VCAA
by the RO. This would result in additional and unnecessary
burdens on VA, with no benefit flowing to the veteran.
The CAVC has held that such remands are to be avoided. See
Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on
other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir.
2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994).
In fact, the CAVC recently stated, "The VCAA is a reason to remand
many, many claims, but it is not an excuse to remand all claims."
Livesay v. Principi, 15 Vet. App. 165, 178 (2001).
A VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim for VA benefits.
Pelegrini v. Principi, 17 Vet. App. 412 (2004).
In the instant case, VCAA notice was issued prior to the initial
actions of the agency of original jurisdiction. Thus, it complies
with expressed timing requirements of Pelegrini.
The decision in Pelegrini held, in part, that a VCAA notice
consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must:
(1) inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek to
provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request or
tell the claimant to provide any evidence in the claimant's
possession that pertains to the claim, or something to the effect
that the claimant should "give us everything you've got pertaining
to your claim(s)."
This new "fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1). The veteran was afforded
opportunities to submit additional evidence. It appears to the
Board that the claimant has indeed been notified that he should
provide or identify any and all evidence relevant to the claim.
All the VCAA requires is that the duty to notify is satisfied, and
that claimants are given the opportunity to submit information and
evidence in support of their claims. Once this has been
accomplished, all due process concerns have been satisfied. See
Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet.
App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).
In this case, because each of the four content requirements of a
VCAA notice has been fully satisfied, the Board concludes that any
error in not providing a single notice to the appellant covering
all content requirements is harmless error.
The Board finds that VA has done everything reasonably possible to
assist the claimant. Adjudication of the claim may proceed,
consistent with the VCAA. The record demonstrates that remand for
further action in accordance with the VCAA would serve no useful
purpose. See Soyini, supra.
Having determined that the duty to notify and the duty to assist
have been satisfied, the Board turns to an evaluation of the
veteran's claim on the merits.
Procedural Background
Service connection for schizophrenic reaction, paranoid type, was
originally awarded by the RO in an October 1972 rating decision.
The RO awarded a 100 percent evaluation effective in July 1972.
The decision was based on the veteran's service medical records.
In an April 1975 rating decision, the veteran's psychiatric
disability was recharactized as schizophrenia, paranoid. His
evaluation was also reduced to 50 percent disabling effective in
July 1975.
Since the original award of service connection, the veteran has
been assigned various evaluations for his paranoid schizophrenia.
It has been rated as 30 percent disabling since July 1992.
The veteran filed for an increased rating in May 2001. The 30
percent disability evaluation was continued by the RO in a May
2002 rating decision. The veteran disagreed with the 30 percent
rating and initiated the instant appeal.
Criteria
Disability evaluations are determined by the application of the VA
Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4
(2003).
The percentage ratings contained in the Schedule represent, as far
as can be practicably determined, the average impairment in
earning capacity resulting from diseases and injuries incurred or
aggravated during military service and the residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a),
4.1.
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations, which are potentially
applicable, based upon the assertions and issues raised in the
record and to explain the reasons and bases for its conclusion.
Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
Governing regulations include 38 C.F.R. §§ 4.1, 4.2 and 4.41,
which require the evaluation of the complete medical history of
the veteran's condition. The CAVC has held that, where
entitlement to compensation has already been established, and an
increase in the disability rating is at issue, the present level
of disability is of primary concern.
Although a rating specialist is directed to review the recorded
history of a disability in order to make a more accurate
evaluation, the regulations do not give past medical reports
precedence over current findings. Francisco v. Brown, 7 Vet. App.
55, 58 (1994). When there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates the
criteria required for that rating. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7.
When the minimum schedular evaluation requires residuals and the
schedule does not provide a noncompensable evaluation, a
noncompensable evaluation will be assigned when the required
residuals are not shown. 38 C.F.R. § 4.31.
In general, all disabilities, including those arising from a
single disease entity, are rated separately, and all disability
ratings are then combined in accordance with 38 C.F.R. § 4.25.
However, the evaluation of the same "disability" or the same
"manifestations" under various diagnoses is prohibited. 38 C.F.R.
§ 4.14. The CAVC has held that a claimant may not be compensated
twice for the same symptomatology, as "such a result would
overcompensate the claimant for the actual impairment of his
earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993).
This would result in pyramiding, contrary to the provisions of 38
C.F.R. § 4.14.
The CAVC has acknowledged, however, that when a veteran has
separate and distinct manifestations attributable to the same
injury, he should be compensated under different diagnostic codes.
Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet.
App. 225 (1993).
Psychiatric Disability
The service-connected schizophrenia, paranoid type, is currently
rated as 30 percent disabling under diagnostic code 9203, 38
C.F.R. § 4.130. A 30 percent disability evaluation is assigned
under the general rating formula for mental disorders for
occupational and social impairment with occasional decrease in
work efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning satisfactorily,
with routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness, panic
attacks (weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions, or recent
events). Id.
The rating criteria contemplate that a 50 percent evaluation is to
be assigned for occupational and social impairment with reduced
reliability and productivity due to such symptoms as: flattened
affect; circumstantial, circumlocutory, or stereotyped speech;
panic attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to complete
tasks); impaired judgment; impaired abstract thinking;
disturbances of motivation and mood; difficulty in establishing
and maintaining effective work and social relationships. 38
C.F.R. § 4.130, Diagnostic Code 9411 (2003).
A 70 percent evaluation is assigned for occupational and social
impairment, with deficiencies in most areas, such as work, school,
family relations, judgment, thinking, or mood, due to such
symptoms as: suicidal ideation; obsessional rituals which
interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such as
unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including work
or a work like setting); inability to establish and maintain
effective relationships. Id.
A 100 percent evaluation is assigned for total occupational and
social impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent danger
of hurting self or others; intermittent inability to perform
activities of daily living (including maintenance of minimal
personal hygiene); disorientation to time or place; memory loss
for names of close relatives, own occupation, or own name. Id.
The use of the term "such as" in the general rating formula for
mental disorders in 38 C.F.R. § 4.130 (2003) demonstrates that the
symptoms after that phrase are not intended to constitute an
exhaustive list, but rather are to serve as examples of the type
and degree of symptoms, or their effects, that would justify a
particular rating. See Mauerhan v. Principi, 16 Vet. App. 436,
442 (2002).
It is not required to find the presence of all, most, or even
some, of the enumerated symptoms recited for particular ratings.
Id. The use of the phrase "such symptoms as," followed by a list
of examples, provides guidance as to the severity of symptoms
contemplated for each rating, in addition to permitting
consideration of other symptoms, particular to each veteran and
disorder, and the effect of those symptoms on the claimant's
social and work situation. Id.
The evidence considered in determining the level of impairment
under 38 C.F.R. § 4.130 (2003) is not restricted to symptoms
provided in that diagnostic code. Id. at 443. Instead, the
rating specialist is to consider all symptoms of a claimant's
condition that affect the level of occupational and social
impairment, including, if applicable, those identified in the
American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders, as revised in the 1994, fourth edition
(DSM-IV). Id.
If the evidence demonstrates that a claimant suffers symptoms or
effects that cause an occupational or social impairment equivalent
to what would be caused by the symptoms listed in that diagnostic
code, the appropriate, equivalent rating will be assigned. Id.
Under the criteria when evaluating a mental disorder, the rating
agency shall consider the frequency, severity, and duration of
psychiatric symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. 38 C.F.R. §
4.126.
The rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of the
level of disability at the moment of the examination. Id.
When evaluating the level of disability from a mental disorder,
the rating agency will consider the extent of social impairment,
but shall not assign an evaluation solely on the basis of social
impairment. Id.
The Global Assessment of Functioning scale score (GAF) is a scale
reflecting the "psychological, social, and occupational
functioning in a hypothetical continuum of mental health-illness."
Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) [citing American
Psychiatric Association, Diagnostic And Statistical Manual For
Mental Disorders 32 (4th ed. 1994)] (DSM-IV)].
GAF scores ranging between 71 to 80 reflect that if symptoms are
present, they are transient and expectable reactions to
psychosocial stressors (e.g., difficulty concentrating after
family argument) and result in no more than slight impairment in
social, occupational, or school functioning (e.g., temporarily
falling behind in schoolwork). DSM-IV at 32.
GAF scores ranging between 61 to 70 reflect some mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning
pretty well, and has some meaningful interpersonal relationships.
Id.
Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co- workers). Id.
Scores ranging from 41 to 50 reflect serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational or
school functioning (e.g., no friends, unable to keep a job). Id.
Scores ranging from 31 to 40 reflect some impairment in reality
testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) or major impairment in several areas, such
as work or school, family relations, judgment, thinking, or mood
(e.g., depressed man avoids friends, neglects family, and is
unable to work; child frequently beats up younger children, is
defiant at home, and is failing at school). Id.
Ratings shall be based as far as practicable, upon the average
impairments of earning capacity with the additional proviso that
the Secretary shall from time to time readjust this schedule of
ratings in accordance with experience. To accord justice,
therefore, to the exceptional case where the schedular evaluations
are found to be inadequate, the Under Secretary for Benefits or
the Director, Compensation and Pension Service, upon field station
submission, is authorized to approve on the basis of the criteria
set forth in this paragraph an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or disabilities.
The governing norm in these exceptional cases is: A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to render
impractical the application of the regular schedular standards. 38
C.F.R. § 3.321(b)(1) (2003).
When, after consideration of all of the evidence and material of
record in an appropriate case before VA, there is an approximate
balance of positive and negative evidence regarding the merits of
an issue material to the determination of the matter, the benefit
of the doubt in resolving each such issue shall be given to the
claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R.
§§ 3.102, 4.3.
The Secretary shall consider all information and lay and medical
evidence of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When there is
an approximate balance of positive and negative evidence regarding
the merits of an issue material to the determination of the
matter, the Secretary shall give the benefit of the doubt in
resolving each such issue. See 38 U.S.C.A. § 5107.
In Gilbert, 1 Vet. App. at 53, it was observed that "a veteran
need only demonstrate that there is an 'approximate balance of
positive and negative evidence' in order to prevail."
To deny a claim on its merits, the preponderance of the evidence
must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54. The Board observes in
passing that the benefit of the doubt rule articulated above has
not been substantially altered by the VCAA.
Analysis
The RO has assigned a 30 percent evaluation for schizophrenia,
paranoid type. The veteran has asserted that a higher rating
should be assigned due to the severity of his symptoms.
The Board has reviewed all the evidence in the veteran's claims
folder, which includes, but is not limited to: contentions of the
veteran; reports of VA examination dated in February 1998 and
October 2001; private medical records from IBM, Dr. CBS, VA
hospitalization records dated in 1992; VA outpatient treatment
records dated between 1999 and 2002; an August 2002 letter from
the DC VA Medical Center (VAMC); and the transcript from the
veteran's October 2003 Central Office hearing.
Considering the evidence of record, summarized in pertinent part
below, and in light of the applicable laws and regulations, the
veteran's schizophrenia, paranoid type, symptomatology more
closely approximates the criteria for the next higher evaluation
of 50 percent, and there is no basis for a higher rating at this
time. In this regard, private medical records from IBM indicate
they began following the veteran in 1979. They noted he had acute
psychotic episodes in 1979 and 1981. Examiners stated that he had
serious problems in the workplace causing multiple job switches
due to poor interaction with peers and his inability to maintain
interpersonal relationships.
VA outpatient treatment records dated between 1999 and 2002
indicate the veteran continued to seek treatment for his
schizophrenia. Examiners noted that in October 1999, the veteran
was doing well. A December 2000 entry indicates it was his first
appointment in about a year and that he was doing well.
In January 2002, the veteran had no symptoms of psychosis and was
noted to be working full-time at a new job. A February 2002 entry
indicates he had no evidence of depression. His schizophrenia was
found to be stable and in good control. In May 2002, he
experienced an exacerbation of symptoms. He reported he was not
sleeping well.
Upon VA examination in October 2001, the veteran informed the
examiner that he had just secured a new job at a retail store. He
reported the last time that he had auditory hallucinations was in
the mid 1990's. He also indicated that the last time he was
hospitalized had been in 1993 and 1994.
Mental status examination revealed the veteran's speech was
coherent. His thought process was goal directed and well
organized. There were no auditory or visual hallucinations.
There were no delusions. The examiner did note he had some
underlying paranoia that existed with respect to victimization and
persecution in the Army and at IBM. Short term and long-term
memories were grossly intact. Insight and judgment were somewhat
limited and erratic at times.
The veteran was diagnosed with paranoid schizophrenia, possibly in
remission. The examiner assigned a GAF of 70, which according to
DSM-IV is indicative of
some mild symptoms or some difficulty in social or occupational
functioning, but generally functioning pretty well, and with some
meaningful interpersonal relationships. The examiner concluded
that the veteran had no current acute symptoms except for some
paranoia. The examiner also indicated that the veteran's mental
illness significantly affected his occupational functioning and to
a lesser degree his social functioning.
An August 2002 letter from the staff psychiatrist at the D.C. VAMC
indicates the veteran had trouble maintaining employment. The
psychiatrist stated the veteran had poor insight into his illness
and showed significant paranoia, as well as delusional thought
content. It was also noted that he suffered from persistent
obsessive thoughts in connection with his employment at IBM. It
was the psychiatrist's opinion that the veteran was totally
disabled.
A November 2003 letter from Dr. CBS indicates the veteran carried
a diagnosis of schizophrenia with a significant affective
competent and a severe personality disorder. The doctor noted the
veteran was currently managing fairly well though he remained
vulnerable to relapse. The doctor concluded that the veteran's
aggressiveness and suspiciousness in his personality made his
workday world unstable.
Finally, the veteran himself testified before the undersigned
Veterans Law Judge in October 2003. He indicated that his
schizophrenia had gotten worse. He reported such symptoms as
sleeplessness, panic attacks, anger, depression, and short-term
memory loss. He stated that he currently worked part-time 29
hours per week as a computer repairmen. He indicated that he did
not have a lot of friends.
In the instant case, while the Board notes that the veteran does
not meet all the criteria for a 50 percent rating, his
schizophrenia more nearly approximates the criteria required for
that rating rather than the current 30 percent evaluation. 38
C.F.R. § 4.7.
As noted above, while the veteran's schizophrenia, paranoid type,
was assigned a GAF of 70, indicating mild symptoms, it appears to
be the consensus of both private and VA medical providers that the
veteran's mental illness has significantly impacted his ability to
function in an occupational setting.
Based on aforementioned evidence, while a 50 percent rating is
appropriate, a 70 percent disability evaluation is not warranted,
as there has been no showing of
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment, thinking,
or mood, due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near continuous
panic or depression affecting the ability to function
independently, appropriately and effectively; impaired impulse
control (such as unprovoked irritability with periods of
violence); spatial disorientation; neglect of personal appearance
and hygiene; and inability to establish and maintain effective
relationships. 38 C.F.R. § 4.130. The veteran's difficulty in
adapting to stressful circumstances (including work or a work like
setting) is reflected in the 50 percent rating.
Despite the August 2002 letter from the staff psychiatrist at the
D.C. VAMC, which indicated the veteran was totally disabled; the
objective evidence of record is to the contrary. In this regard,
it is clear that the examiner's observation was predicated on the
veteran's subjectively furnished history, and not a review of the
evidentiary record. Upon VA examination in October 2001, the
veteran was working full-time in a retail position and most
recently, in October 2003; the veteran testified he was working
part-time 29 hours per week as computer repairmen. For these
reasons the veteran's schizophrenia, paranoid type, has not
resulted in severe occupational impairment. 38 C.F.R. § 4.130.
In reaching the foregoing determinations, the Board has considered
the clinical manifestations of the veteran's schizophrenia,
paranoid type, and its effects on his earning capacity and
ordinary activity. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Should
his disability picture change in the future, he may be assigned a
higher rating. See 38 C.F.R. § 4.1. At present, however, there is
no basis for assignment of an evaluation other than that noted
above.
Extraschedular Evaluation
The CAVC has held that the Board is precluded by regulation from
assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1)
in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Board, however, is still obligated to seek all issues that are
reasonably raised from a liberal reading of documents or testimony
of record and to identify all potential theories of entitlement to
a benefit under the law or regulations.
In Bagwell v. Brown, 9 Vet. App. 337 (1996), the CAVC clarified
that it did not read the regulation as precluding the Board from
affirming an RO conclusion that a claim does not meet the criteria
for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from
reaching such conclusion on its own. In the veteran's case at
hand, the
Board notes that while the RO provided the criteria and obviously
considered them, it did not grant increased compensation benefits
on this basis.
The CAVC has further held that the Board must address referral
under 38 C.F.R. § 3.321(b)(1) only where circumstances are
presented which the VA Under Secretary for Benefits or the
Director of the VA Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
The Board does not find the veteran's disability picture to be
unusual or exceptional in nature as to warrant referral of his
case to the Director or the Under Secretary for review for
consideration of extraschedular evaluation under the provisions of
38 U.S.C.A. § 3.321(b)(1).
In this regard, the Board notes that the veteran's schizophrenia,
paranoid type, has not required current frequent inpatient care,
nor has it by itself markedly interfered with employment.
The evidence of record indicates that the veteran is currently
working 29 hours per week as a computer repairman. The increased
50 percent rating adequately compensates him for the nature and
extent of severity of his schizophrenia. Having reviewed the
record with these mandates in mind, the Board finds no basis for
further action on this matter.
ORDER
Entitlement to an increased evaluation of 50 percent for
schizophrenia, paranoid type, is granted, subject to controlling
regulations governing the payment of monetary awards.
REMAND
These claims must be afforded expeditious treatment by the
Veterans Benefits Administration (VBA AMC. The law requires that
all claims that are remanded by the Board or by the CAVC for
additional development or other appropriate action must be handled
in an expeditious manner. See The Veterans Benefits Act of 2003,
Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be
codified at 38 U.S.C. §§ 5109B, 7112).
The CAVC has held that section 5103(a), as amended by the Veterans
Claims Assistance Act of 2000 (VCAA) and § 3.159(b), as recently
amended, require VA to inform a claimant of which evidence VA will
provide and which evidence claimant is to provide, and remanding
where VA failed to do so. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A
and 5107 (West 202); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2002).
The RO has not issued a VCAA notice letter pertaining the issue of
entitlement to a TDIU compliant with Quartuccio, supra.
In the May 2002 rating decision, the RO denied a claim of
entitlement to a TDIU.
The veteran was notified of the decision by letter dated June 11,
2002. In a July 2002 VA Form 21-4138, Statement in Support of
Claim, the veteran indicated that in reference to the June 11,
2002, letter he disagreed with the findings. The Board finds that
this amounted to a notice of disagreement with respect to the
issue of TDIU. 38 C.F.R. § 20.302(a).
The claims folder, which was transferred to the Board on or about
April 24, 2003, does not contain a Statement of the Case (SOC)
with respect to the issue of a TDIU. Accordingly, the Board is
required to remand this issue to the RO for issuance of a SOC.
Godfrey v. Brown, 7 Vet. App. 398 (1995); Manlincon v. West, 12
Vet. App. 238 (1999).
The Board observes that additional due process requirements may be
applicable as a result of the enactment of the VCAA and its
implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)).
Because of the reasons listed above, a remand in this case is
required. Accordingly, this case is REMANDED for the following:
1. The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the VBA AMC.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
2. The VBA AMC must review the claims file and ensure that all
VCAA notice obligations have been satisfied in accordance with 38
U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), Veterans Benefits
Act of 2003, Pub. L. 108-183 ,§ 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (to be codified at 38 U.S.C.A. § 5103), and any other
applicable legal precedent.
Such notice should specifically apprise the appellant of the
evidence and information necessary to substantiate his claim and
inform him whether he or VA bears the burden of producing or
obtaining that evidence or information, and of the appropriate
time limitation within which to submit any evidence or
information. 38 U.S.C.A. § 5103(a) and (b) (West 2002);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
3. The VBA AMC should issue an SOC addressing the issue of
entitlement to a TDIU. The VBA AMC should advise the veteran of
the need to timely file a substantive appeal if he desires
appellate review.
Thereafter, the case should be returned to the Board for further
appellate review, if in order. By this remand, the Board
intimates no opinion as to any final outcome warranted. No action
is required of the veteran until he is notified by the VBA AMC.
______________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or
Board) is the final decision for all issues addressed in the
"Order" section of the decision. The Board may also choose to
remand an issue or issues to the local VA office for additional
development. If the Board did this in your case, then a "Remand"
section follows the "Order." However, you cannot appeal an issue
remanded to the local VA office because a remand is not a final
decision. The advice below on how to appeal a claim applies only
to issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not
need to do anything. We will return your file to your local VA
office to implement the BVA's decision. However, if you are not
satisfied with the Board's decision on any or all of the issues
allowed, denied, or dismissed, you have the following options,
which are listed in no particular order of importance:
* Appeal to the United States Court of Appeals for Veterans Claims
(Court)
* File with the Board a motion for reconsideration of this
decision
* File with the Board a motion to vacate this decision
* File with the Board a motion for revision of this decision based
on clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to
also:
* Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a
motion to vacate, or a motion for revision based on clear and
unmistakable error with the Board, or a claim to reopen at the
local VA office. None of these things is mutually exclusive - you
can do all five things at the same time if you wish. However, if
you file a Notice of Appeal with the Court and a motion with the
Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the
Court before you file a motion with the BVA, the BVA will not be
able to consider your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120
days from the date this decision was mailed to you (as shown on
the first page of this decision) to file a Notice of Appeal with
the United States Court of Appeals for Veterans Claims. If you
also want to file a motion for reconsideration or a motion to
vacate, you will still have time to appeal to the Court. As long
as you file your motion(s) with the Board within 120 days of the
date this decision was mailed to you, you will then have another
120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.
You should know that even if you have a representative, as
discussed below, it is your responsibility to make sure that your
appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans
Claims? Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure
for filing a Notice of Appeal, the filing fee (or a motion to
waive the filing fee if payment would cause financial hardship),
and other matters covered by the Court's rules directly from the
Court. You can also get this information from the Court's web site
on the Internet at www.vetapp.uscourts.gov, and you can download
forms directly from that website. The Court's facsimile number is
(202) 501-5848.
To ensure full protection of your right of appeal to the Court,
you must file your Notice of Appeal with the Court, not with the
Board, or any other VA office.
How do I file a motion for reconsideration? You can file a motion
asking the BVA to reconsider any part of this decision by writing
a letter to the BVA stating why you believe that the BVA committed
an obvious error of fact or law in this decision, or stating that
new and material military service records have been discovered
that apply to your appeal. If the BVA has decided more than one
issue, be sure to tell us which issue(s) you want reconsidered.
Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the
BVA to vacate any part of this decision by writing a letter to the
BVA stating why you believe you were denied due process of law
during your appeal. For example, you were denied your right to
representation through action or inaction by VA personnel, you
were not provided a Statement of the Case or Supplemental
Statement of the Case, or you did not get a personal hearing that
you requested. You can also file a motion to vacate any part of
this decision on the basis that the Board allowed benefits based
on false or fraudulent evidence. Send this motion to the address
above for the Director, Management and Administration, at the
Board. Remember, the Board places no time limit on filing a
motion to vacate, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis
of clear and unmistakable error? You can file a motion asking that
the Board revise this decision if you believe that the decision is
based on "clear and unmistakable error" (CUE). Send this motion
to the address above for the Director, Management and
Administration, at the Board. You should be careful when preparing
such a motion because it must meet specific requirements, and the
Board will not review a final decision on this basis more than
once. You should carefully review the Board's Rules of Practice on
CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on
filing a CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to
reopen your claim by simply sending them a statement indicating
that you want to reopen your claim. However, to be successful in
reopening your claim, you must submit new and material evidence to
that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always
represent yourself in any claim before VA, including the BVA, but
you can also appoint someone to represent you. An accredited
representative of a recognized service organization may represent
you free of charge. VA approves these organizations to help
veterans, service members, and dependents prepare their claims and
present them to VA. An accredited representative works for the
service organization and knows how to prepare and present claims.
You can find a listing of these organizations on the Internet at:
www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is
not a lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than
before VA, then you can get information on how to do so by writing
directly to the Court. Upon request, the Court will provide you
with a state-by-state listing of persons admitted to practice
before the Court who have indicated their availability to
represent appellants. This information is also provided on the
Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for
a claim involving a home or small business VA loan under Chapter
37 of title 38, United States Code, attorneys or agents cannot
charge you a fee or accept payment for services they provide
before the date BVA makes a final decision on your appeal. If you
hire an attorney or accredited agent within 1 year of a final BVA
decision, then the attorney or agent is allowed to charge you a
fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the
Court. VA cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or
agent may charge you a reasonable fee for services involving a VA
home loan or small business loan. For more information, read
section 5904, title 38, United States Code.
In all cases, a copy of any fee agreement between you and an
attorney or accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion
asking the Board to do so. Send such a motion to the address above
for the Office of the Senior Deputy Vice Chairman at the Board.
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